West Virginia’s Bail Reform Bill: How It Works And Who It Serves
In the first episode of this series, the focus was on the story of Lisa Hartline— a legal aid lawyer who found her calling while incarcerated and unable to make bail. Just like Lisa, Deborah Ujevich dated a man who got caught up in drugs.
In August 2015, a Weirton police officer showed up at Ujevich’s front door. Her fiance at the time worked for a fencing company and was caught searching through an apartment unit on the job site.
“I think that my then-fiance, had gotten involved with I think it was crack cocaine. And I guess they were going in and out of units in that building looking for I don't know, money or something to see or something like that. So they got caught,” Ujevich said.
Ujevich was in Ohio at their home, having no idea that this was going on. Her ex-fiance told the police that her uncle lived in the building he was found searching in. Ujevich told the police that was not true.
The police continued to question her and insisted she go to the police station to make a statement. She refused and claimed she did not have to because she told the police all she knew. The conversation became heated.
“He said he was going to put me under arrest for obstructing an officer. So I was horrified, and had no idea,” Ujevich said. “So I fought him. And then they gave me a resisting arrest charge.”
While she waited at the police station, another officer began to ask her if she knew anything else about what her ex-fiance was doing in Weirton.
“And somebody else who was just dressed in street clothes stopped by and asked me if I was there in conjunction with an incident. And I said ‘No, it wasn't me,’” Ujevich said. “And he said ‘Did you know what was going on?’ And I said, ‘Yeah, I had a really good idea of what was going on.’”
Ujevich was charged with conspiracy to commit burglary. The logic was that she had possessed knowledge about guilt and not notified the authorities. Her bond was set for $20,000 and she waited two and a half months in Northern Regional Jail before she was found guilty of a felony conspiracy charge. She served a total of 20 months incarcerated spread out between Northern Regional Jail, Tygart Valley Regional Jail and Lakin Correctional Center.
Ujevich was never able to learn the full details about what her ex-fiance was involved in because as co-defendants, they were not able to speak, and he died before she was released from prison.
Today, Ujevich works as a community organizer for WV Family of Convicted People and as a detox intake coordinator in Cross Lanes, West Virginia.
“I think one of the things that hit me the hardest was that we've had over an 80% increase in jail incarceration in the last 20 years,” said Quenton King, a policy analyst at the West Virginia Center on Budget and Policy. He spoke from his home in Jefferson County about HB 2419, a bill that became law in June 2020 that aimed to reform the bail system so that more people charged with nonviolent crimes are released pretrial or with the least restrictive bail amount. He published a report in January about the number of counties struggling to pay regional jail bills.
The West Virginia Center on Budget and Policy reports that the jail population saw an 81% increase between 2000 and 2019. According to the WV Division of Corrections and Rehabilitation’s Annual Report, in 2018––before HB 2419 was passed––the average jail population was over 5,000. A goal of the bill was to reduce the overcrowded jail population, but in early March of this year, nine months after the bill went into effect, there were almost 6,000 people in regional jails. At the end of July, there were 5,420 people in jails.
According to King’s report, it cost about $48.25 per day to house someone in a regional jail. Between 2015 and 2019, counties weren’t able to meet the bill requirements and fell short by an average $2.3 million per year. Since 2014, two out of every three counties were unable to pay the jail bill in full.
So if the county can’t pay, who does?
“At the end of it, West Virginians are paying for West Virginians being incarcerated,” said King. “But every dollar spent on incarceration is a dollar that can’t be spent on education, or on welfare for your citizens or a good park, something that really helps people.”
In West Virginia, regional jails mostly house pretrial defendants–– people who haven’t been charged with a crime yet, but who either aren’t allowed to be released before trial or can’t afford the cash bond. Jails also house people convicted of minor crimes who are typically sentenced to a year or less of time.
King’s report found that if the pretrial population was lowered by just 25%, then counties could have saved up to $11 million in 2019.
“The fact that over 50% of our jail population is pretrial. That kind of holds true across the country, it’s not just our state. Many people will say that some people have to be there, and that's fine. If you're a pretrial for murder, perhaps you should be in jail. But many people are just there because they missed a court date, or some other really small miniscule crime that shouldn't result in incarceration in the first place, and are still in jail pretrial.”
HB 2419 was the legislature’s attempt to address some of these issues, but it doesn’t actually change anything about the way judges and magistrates assign bail. It’s more like guidelines than rules. Experts cite three concerns with the law.
The first: no one can agree how to interpret it. Some argue the law applies to both nonviolent misdemeanors and felonies,while others insist it only applies to misdemeanors. This distinction is important because in late July, pretrial felons made up about 39% of the jail population, according to the DCR.
Former state Delegate John Shott, a Republican from Bluefield, was the lead sponsor of the bill. Even he admits it’s a tricky law.
“It was purely limited to misdemeanor offenses,” Shott said. “It was expanded to include misdemeanor offenses and it applied to any other offense, which carried a penalty of incarceration. So, misdemeanor offenses and felony offenses. And most felonies do carry a penalty of incarceration.”
He does admit that other people he’s spoken with interpret that differently.
“Now, I will say that some people that I've talked with interpreted that to mean only other misdemeanor offenses, which carried a penalty of incarceration, it's not totally clear,” Shott said.
Devon Unger, a staff attorney at the West Virginia Innocence Project and former public defender, said the broad language of the bill implies that both types of offenses qualify.
“The plain language of the statute applies to felonies and misdemeanors,” he said. “So I mean, I'm confident in saying any prosecutors or judges that are interpreting this to only apply to misdemeanors, they need to read it again, because they're reading it incorrectly.”
But Kanawha County Prosecuting Attorney Chuck Miller says he interprets the bill as only applying to misdemeanor offenses and that’s how he advises his staff to interpret it.
“The overall intent of it is to keep low-level offenders, primarily people who commit misdemeanors from having to sit in jail until their case is resolved. I don't see it,” he said.
Another concern is this: There are a number of crimes listed on the bill that if committed, are excluded from qualifying for a personal recognizance bond. And Unger says these exceptions to qualify make up the majority of arrests.
“The offenses that come to mind off the top of my head, where mandatory release would apply, would be something like driving on a suspended license. Maybe a disorderly conduct if it doesn't involve the actual use of violence or threat of violence, a disorderly might qualify, but you really have to do some analysis,” Unger said.
So, the first problem is that no one really agrees on the seriousness of crimes under the law as written. The second is iit doesn’t apply to most people in jail and the third, and arguably the biggest issue with HB 2419, is it doesn’t offer clarity on what what judges or magistrates should do.
“So, it's kind of not a clear answer. There is some mandatory language in there, but it's very limited. For the most part, judges still have discretion to set cash bail in the vast majority of cases, both misdemeanors and felonies,” Unger said.
Other states have handled bail differently. For example, when New York amended its bail system in 2019, the government eliminated the use of cash bail in all but 10% of crimes.
In Illinois, the Illinois Pre-Trial Fairness Act passed earlier this year completely abolished money bail.
But in West Virginia, the legislature spent almost three-and-a-half months amending a bill that, in its final form says, “the arrested person is entitled to the least restrictive bail conditions determined reasonably necessary to ensure appearance as well as ensure safety of persons in the community and maintenance of evidence.” In other words, it’s at the magistrates discretion.
Delegate Brandon Steele, a Republican from Raleigh County, voted against the bill in 2020. He said in his county, the prosecuting attorneys, defense attorneys, magistrates and judges have a working relationship where incarceration isn’t always the answer.
“I just looked at my personal experience in Raleigh County, you know, why am I taking away the discretion of my magistrates in Raleigh County, when I know that nine times out of 10, they're going to do a [personal recognizance] bond in that situation anyway?” Steele said.
“I think we have a healthy relationship in Raleigh County, with our magistrates, our prosecutors, our defense bar, that all of us realize that we are operating a system here, everyone's trying to make sure that society functions normally,” he said.
One piece of the bill not discussed yet is that it does allow for a lawyer to return after bail was set to argue that it was too high and request for a reduction or release on personal recognizance.
Two years ago, when Shott sponsored a bill similar to HB 2419, it said that within 10 days of the bond being set, a lawyer could argue for a reduction. But critics said that was too long because 10 days in jail could really mess up someone’s life. In HB 2419, that time limit was reduced to three days. But Shott critiques that part.
“That's become a real problem, especially in some of these smaller counties, where they have maybe one prosecutor and one magistrate. And they have a pretty significant workload, trying to do that within 72 hours is quite a burden, and in some cases, I've been told it's impossible,” Shott said.
In the most recent legislative session, another bill was passed to amend the time limit for a bond hearing. It extends the hearing limit to five days instead of three.
Maybe the question here is, was the bill amended in such a way that it would virtually have no effect on the bail system at all?
Obviously, there’s some grey-area in the text of the law, and it appears not to be affecting the people it was aimed to affect, those incarcerated in regional jails.
If everyone was on the same page, and magistrates released all people arrested for non-violent misdemeanors on their own recognizance, would it decrease the jail population and save taxpayers money?
Staci Kisner says she’s not so sure. Kisner owns one of the largest bail bonds businesses in West Virginia.
“The thing is about bail reform, they're wanting to release these people on PR bonds. Okay, so if they don't show up for PR bonds, then the state, the county has to spend their time and money to go hunt these people down,” Kisner said.
“Whereas when we do a surety bond, if they don't show up for court, we're responsible to go get them," she said. "That doesn't cost the taxpayer any money. And then once we return them to the court, then the courts do whatever they decide to do with them. If they fail to appear, we're going to go hunt them down.”